Mr. X and the Department of Enterprise, Trade and Employment

The Senior Investigator affirmed the Department's decision and found that the names were exempt under section 27 of the FOI Act. He did not make a finding regarding sections 26 and 31.

Case Summary

Whether the Department is justified in its decision to withhold the names of companies or individuals who have been awarded licences for the export of military or dual purpose products on the grounds of sections 26, 27 and 31 of the FOI Act.

Date of Decision: 15.03.2010

Background:

On 23 February 2007, the applicant, requested "A list of the names (only) of companies or individuals who have been awarded licences for the export of military or dual use products in the last five years". On 23 March 2007, the Department decided to refuse access to the information on the ground of sections 26, 27 and 31 of the FOI Act.

On 28 March 2007, the applicant requested an internal review of this decision and addressed the exemptions quoted by the Department. He also asserted that " the public interest test does not seem to have been applied to a sufficient degree". On 23 April 2007, the Department in its internal review upheld its original decision. Again it quoted and developed its argument that sections 26, 27 an 31 apply. On 30 April, 2007, the applicant in a detailed submission applied for a review by the Information Commissioner of the Department's decisions.

Over the first week of November 2009, Mr. Colin Stokes of this Office wrote to all concerned third parties outlining his preliminary view on the matter. A substantial number of those contacted made submissions objecting to the release of the information for diverse reasons which will be considered below. On 1 February 2010, Mr. Stokes discussed with the applicant some of the issues that had been raised by the third parties and it was agreed that a preliminary view should issue to him to take account of these issues. This preliminary view, which was issued on 10 February 2010, incorporated consideration of the issues raised in the submissions made by third parties and proposed accepting that the Department was justified in its decision to withhold the information. On 2 March 2010, the applicant in an email submission indicated, as is his right, that he did not accept this Office's preliminary view.

I am therefore proceeding to a formal binding decision in this review. For the sake of completeness and clarity I will follow the format employed used by Mr. Stokes in his preliminary review. I am conscious that this may lead to some repetition between that preliminary view and my decision but I am satisfied that such repetition is necessary to properly explain the decision.

Conducted in accordance with section 34(2) of the FOI Act by Mr. Seán Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of the Review

This decision is confined to the question as to whether the record of the names of those companies and individuals who have been awarded licenses for the export of military or dual use products in the five years ending 23 February 2007, should be released. In arriving at my decision I have taken account of the submissions made by all interested parties including the most recent by the applicant dated 2 March, 2010. I am satisfied that it is proper for me to consider all submissions that are, in my view, relevant to the review, and that it is open to the parties to make more than one submission should they so wish.

Submissions

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Findings

Preliminary Matters

As pointed out by Mr. Stokes, while I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the contents of an exempt record in providing such explanation. This is to preserve the right of appeal of all parties to the High Court in cases where there is disagreement with a decision I might make. In the circumstances of this case, section 43(3) requires me to exercise caution in relation to the description I can give of the records at issue.

In addition, before I set out my findings on these records I wish to state that, under section 34(12)(b) of the FOI Act, a decision by a public body to refuse to grant access to a record is presumed not to have been justified unless it is shown to the satisfaction of the Commissioner that the decision was justified. This provision has the effect of placing the burden of proof for refusing access to a record on the public body.

Findings

The Department contends that the information is exempt under section 26, 27 and 31. I consider these exemptions below.

Section 27

The Department contends that the information is exempt on the grounds that it is commercially sensitive, and that, accordingly, section 27 applies to it. In particular, it contends that the information is exempt under section 27(1)(b).

Section 27(1)(b)

Section 27(1)(b) provides for the withholding of -

"financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation,"

could reasonably be expected to result in material financial loss or gain to the person whom the information relates, or

could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation.

The word "could" in the provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". In relation to the second bullet point above, it should be noted that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so. However, in invoking the phrase "prejudice", the damage likely to occur as a result of disclosure of the information sought must be specified with a reasonable degree of clarity.

Having considered the submissions, I must form a view as to whether the records meet the criteria for them to be exempt under section 27(1)(b) of the FOI Act. In the first instance, I should make it clear that decisions of the Information Commissioner are de novo, which means that they are based on the circumstances and the law as they pertain at the time of the Commissioner's decision. This view of the Commissioner's role was endorsed by the High Court judgment in the case of Minister for Education and Science v Information Commissionerwhere Mr. Justice O'Caoimh, commenting on the nature of a review by the previous Commissioner under section 34 of the FOI Act, said that, "the decision that was to be made by Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision". In addition I would like to make the point that each case is examined on its merits and my findings in relation to the issuing of one specific type of licence by a particular public body does not set a precedent for other cases.

I believe that in this type of case, where the interests of third parties are involved, natural justice requires consultation with those parties and that having consulted with them I must take their views into consideration.

The applicant contends that the provision of names of companies alone does not concern commercial sensitivity. However, I am satisfied that although the record at issue consists solely of the names of the relevant companies and individuals, in the context of this specialised and sensitive sector of the economy, this information constitutes commercial information within the meaning of section 27 of the FOI Act.

In addition, in order for section 27(1)(b) to apply, the public body would have to be of the opinion that disclosure "could reasonably be expected to" give rise to a harm specified in the exemption. In this regard, I can confirm that the third parties involved provided my Office with examples where companies who have been perceived to be involved in this sector have been subjected to protests both legal and illegal and also to adverse publicity. I therefore accept as reasonable the fears expressed by licence holders that the information could lead to further such harms against their legitimate businesses and "could reasonably be expected to" result in a material financial loss to them and prejudice their competitive position. Therefore, as a harm has been identified together with a reasonable expectation that it could occur through the release of this record, in my view section also 27(1)(b) applies, subject only to the public interest test.

Public Interest

Section 27(3) provides for the release of information where the public interest would, on balance, be better served by granting than by refusing to grant the request i.e. where the public interest that the request should be granted outweighs the public interest in the right to confidentiality. I am satisfied that Mr. Stokes in his preliminary view adequately addressed the public interest considerations and for the sake of completeness I will revisit those arguments.

As Mr. Stokes pointed out, the following are public interest factors that favour release of information in this case:-

the public interest in applicants exercising to the full their rights under the Acts.

the possible public interest in exposing wrongdoing, inefficiency or unfairness.

the possible public interest in achieving greater transparency in how the Department carries out its statutory functions,

In relation to the first consideration in favour of release, I am satisfied that there is an undoubted public interest in applicants exercising to the maximum extent their rights of access to information under the FOI Acts. However, having regard to the Long Title of the Act and to the specific terms of section 27, it seems to me that, generally, sufficient weight will not attach to this factor, of itself, to enable it to be said that the public interest in access rights will necessarily outweigh the right to confidentiality between the public body and a third party or organisation.

The second and third considerations are closely related and I consider that they represent stronger arguments in favour of release. In a general sense, it is considered that, in the context of a mature, representative democracy, public bodies must be open and accountable in the exercise of their functions.

The public interest arguments against release that have been presented to me include the following:-

Transparency is already provided for via The EU Official Journal which publishes the categories and values of export licenses issued by each Member State, without naming the individual recipients. Similarly, the Control of Exports Act, 2008 provides a framework for the monitoring and control of Ireland's export regime, although I accept the applicant's point that it has not yet produced its first report.

There have been incidents of protests, both lawful and unlawful, against companies perceived to be involved in this sector, both abroad and in this country. Publication of identifying details could facilitate such actions against companies engaged in their lawful business in an already regulated sector of the economy.

This type of activity is not constricted by geographic necessities to any one particular location. It is also very sensitive to controversy and unwanted publicity. If the perception grows that this country is less sensitive to its needs, companies will simply relocate to other areas with a loss of earnings, employment and research development to this country.

I accept the applicant's point that decisions in relation to this type of FOI application are a matter for consideration under this State's legislation. Nevertheless, the experience and practice of other EU States, who do not release of this type of information, is relevant in as much as any difference in relation to the conditions under which Irish licence holders operate could set them at a competitive disadvantage internationally. I consider that release of the record in respect of Irish based companies and individuals would have this negative effect. In a case relating to the licensing of fur farms where similar concerns were raised the then Commissioner decided that identifying information should not be released - see Case No 000093

Again, as emphasised by Mr. Stokes, there is no implication that the applicant would engage in any illegal act but this Office must have regard to the fact that release of information under FOI is also to release it to the world at large.

Having considered the matter, in my view the public interest would not, on balance, be better served by granting the request for release of the relevant names. Accordingly, I find that the names are exempt in line with section 27 of the FOI Act. Having found that section 27(1)(b) applies, I do not need to consider further the other exemptions quoted by the Department.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department to withhold this record.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.